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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File Nos.: EB-09-SE-218; EB-11-SE-010
In the Matter of
) Acct. No.: 201032100034
Verizon
) FRN: 0010790335
)
ORDER
Adopted: March 14, 2012 Released: March 14, 2012
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (Bureau) of the Federal Communications
Commission and Verizon. The Consent Decree resolves and terminates the
Bureau's investigations into Verizon's compliance with the
Commission's regulations in 47 C.F.R. Part 4 regarding the reporting
of network outages.
2. The Bureau and Verizon have negotiated a Consent Decree that resolves
the matters in the above-captioned investigations. A copy of the
Consent Decree is attached hereto and incorporated herein by
reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigations.
4. In the absence of material new evidence relating to these matters, we
conclude that our investigations raise no substantial or material
questions of fact as to whether Verizon possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 503(b)
of the Act, and Sections 0.111 and 0.311 of the Rules, the Consent
Decree attached to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigations ARE
TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Tamara Preiss, Vice President, Federal Regulatory
Affairs, Verizon, 1300 I Street, N.W., Suite 400 West, Washington,
D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File Nos.: EB-09-SE-218; EB-11-SE-010
In the Matter of )
NAL/Acct No.: 201032100034
Verizon )
FRN: 0010790335
)
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and
Verizon, by their respective authorized representatives, hereby enter into
this Consent Decree for the purpose of terminating the Enforcement
Bureau's investigations into Verizon's compliance with the Commission's
regulations in 47 C.F.R. Part 4 regarding the reporting of network
outages.
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C. S:
151 et seq.
b. "Adopting Order" means an order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Communications Laws" means, collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which Verizon is subject by virtue of its business activities,
including but not limited to, the outage reporting requirements under
Section 4.9 of the Commission's rules
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Compliance Plan" means the compliance obligations and compliance
program described in this Consent Decree at Paragraph 9.
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigations" means (1) the investigation under File Number
EB-09-SE-218, commenced by the Bureau's January 4, 2010 letter of
inquiry regarding Verizon's compliance with Section 4.11 of the Rules,
47 C.F.R. S: 4.11; and (2) the investigation under File Number
EB-11-SE-010, commenced by the Bureau's March 29, 2011 letter of
inquiry regarding Verizon's compliance with Section 4.9(f) of the
Rules, 47 C.F.R. S: 4.9(f).
i. "Parties" means Verizon and the Bureau, and each is a "Party."
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
k. "Verizon" or "Company" means the regulated, wholly owned subsidiaries
of Verizon Communications Inc. and their successors and assigns.
II. BACKGROUND
2. Pursuant to Section 4.9(f) of the Rules, a wireline communications
provider is required to submit to the Commission an electronic
Notification within 120 minutes after discovering that it has experienced
a network outage of at least 30 minutes duration that: (1) potentially
affects at least 900,000 user minutes of either telephony or paging; (2)
affects at least 1,350 DS3 minutes; (3) potentially affects any special
offices or facilities (as defined in paragraph (b) of Section 4.5 of the
Rules); or (4) potentially affects a 911 special facility (as defined by
paragraph (e) of Section 4.5 of the Rules). Within 72 hours after
discovering such an outage, a wireline communications provider is required
to submit electronically an Initial Communications Outage Report, and
within 30 days after discovering such an outage, a wireline communications
provider is required to submit electronically a Final Communications
Report. Section 4.9(f) of the Rules also requires that the Notification
and the Initial and Final reports shall comply with all of the
requirements of Section 4.11 of the Rules, which include a requirement
that the communications provider submit and attest that it has submitted,
a true, complete and accurate Final Report that contains all pertinent
information, including any information that was not contained in its
Initial Report.
3. On July 6, 2009, Verizon experienced a reportable network outage. On
July 31, 2009, Verizon submitted a timely Final Report concerning that
outage. On January 4, 2010, the Bureau issued a letter of inquiry (LOI) to
Verizon initiating an investigation regarding Verizon's compliance with
the Part 4 of the Rules. Verizon submitted a response to the LOI on
February 3, 2010. On July 9, 2010, the Bureau issued a notice of apparent
liability proposing a monetary forfeiture of $25,000.
4. On March 29, 2011, the Bureau issued an LOI to Verizon, initiating a
further investigation into Verizon's compliance with the network outage
reporting requirements under Part 4 of the Rules. Verizon submitted a
complete response to the LOI on May 26, 2011. The Bureau and Verizon
executed tolling agreements to toll the statute of limitations.
III. TERMS OF AGREEMENT
5. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by incorporation
of such provisions by reference in the Adopting Order without change,
addition, modification, or deletion.
6. Jurisdiction. Verizon agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree and has the authority to
enter into and adopt this Consent Decree.
7. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date. Upon release, the Adopting
Order and this Consent Decree shall have the same force and effect as any
other order of the Bureau. Any violation of the Adopting Order or of the
terms of this Consent Decree shall constitute a separate violation of a
Bureau order, entitling the Bureau to exercise any rights and remedies
attendant to the enforcement of a Commission order.
8. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further expenditure of
public resources, the Bureau agrees to terminate the Investigations. In
consideration for the termination of said Investigations, Verizon agrees
to the terms, conditions, and procedures contained herein. The Bureau
further agrees that in the absence of new material evidence, the Bureau
will not use the facts developed in these Investigations through the
Effective Date, or the existence of this Consent Decree, to institute on
its own motion any new proceeding, formal or informal, or take any action
on its own motion against Verizon concerning the matters that were the
subject of these Investigations. The Bureau also agrees that in the
absence of new material evidence it will not use the facts developed in
these Investigations through the Effective Date, or the existence of this
Consent Decree, to institute on its own motion any proceeding, formal or
informal, or take any action on its own motion against Verizon with
respect to Verizon's basic qualifications, including its character
qualifications, to be a Commission licensee or authorized common carrier
to hold Commission authorizations.
9. Compliance Plan. For purposes of settling the matters set forth
herein, Verizon agrees to implement within thirty (30) calendar days after
the Effective Date a Compliance Plan relating to Verizon's future
compliance with those portions of the Act, the Commission's Rules, and the
Commission's Orders related to the Commission's network outage reporting
requirements; represents that it has one or more management employees in
each of its business units who has responsibility for compliance with each
of the Communications Laws that are relevant to its operations, that there
are at least 20 such management employees, and that, collectively, these
management employees exercise responsibility for the Company's compliance
with all of the Communications Laws that are relevant to the operations of
the Company. The Company agrees that it will either maintain this
compliance structure, or, if it makes changes, shall ensure that it
maintains equivalent management oversight over compliance with all
Communications Laws that are applicable to the operations of the Company.
The Compliance Plan will include, at a minimum, the following components:
a. Compliance Officer. Within thirty (30) calendar days of the Effective
Date, Verizon shall designate a senior corporate manager to serve as
the Compliance Officer for FCC network outage reporting, who will be
responsible for implementing and administering Verizon's Compliance
Plan.
b. Compliance Processes. Within sixty (60) days of the Effective Date:
a. Verizon shall modify its existing processes for gathering, analyzing,
and reporting information about its network outages in order to
ensure that such processes collect information known to Verizon about
all public safety answering points ("PSAPs") affected by such
outages, and Verizon shall include such information about the
affected PSAPs in the Final Report it submits to the Commission
pursuant to Part 4 of the Rules. In particular, the process will
facilitate the accurate identification and inclusion in the Final
Report of all reportable events that stem from a common cause.
b. For each of its PSAP customers, Verizon shall adjust the selective
router trunk group "automatic busy percentage" setting to allow only
a single trunk in a group to be removed from service automatically
due to double wink failures. A "double wink failure" occurs when the
selective router twice receives no signal or wink from the PSAP PBX
to signify a particular trunk's ability to complete the call.
c. Verizon shall review its existing processes for gathering, analyzing,
and reporting information about its network outages, and shall make
any changes necessary for Verizon to detect and report events in
which there is a loss of 911 call processing capabilities in one or
more E-911 tandems/selective routers for at least 30 minutes
duration.
c. Compliance Training Program. Verizon shall establish and maintain an
FCC outage reporting training program addressing FCC network outage
reporting requirements, as detailed below, for all employees and
agents of Verizon who are responsible for analyzing technical
information regarding Verizon's network outages, entering such
information into any Verizon database(s) and/or record(s) that form
the basis of Verizon's reporting of network outages to the Commission,
and compiling and/or submitting Verizon's outage reports to the
Commission (each employee or agent of Verizon who performs any of the
foregoing duties shall be referred to herein as a "Covered Employee").
i. Verizon's network outage training program shall address, at a minimum,
the following subjects in order to facilitate compliance with the FCC's
network outage reporting Rules and this Consent Decree: (A) the Rules
governing the reporting of network outages; (B) the information and
calculations required by the Rules or otherwise necessary to determine
whether an outage is reportable under the Rules; (C) the time periods
within which notifications and reports of reportable outages must be
submitted to the FCC; and (D) the standard internal operating
procedures adopted by Verizon to identify and report those network
outages that satisfy the FCC's reporting criteria and this Consent
Decree ("Operating Procedures"). Verizon shall ensure that such
Operating Procedures are in effect before beginning to administer the
training required by this paragraph.
ii. Verizon shall prepare and provide to all Covered Employees a Verizon
network outage internal on-line training course that summarizes each
of the subjects addressed above. After completion of the training,
Covered Employees will have the ability to access the network outage
internal online training course on demand for reference purposes.
Covered Employees also shall be advised of the regulatory consequences
in the event that Verizon fails to comply with the FCC's outage
reporting requirements.
iii. Covered Employees as of the Effective Date shall complete the network
outage training program within sixty (60) calendar days of the
Effective Date. New or re-assigned employees of Verizon who become
Covered Employees thirty (30) days or more after the Effective Date
shall complete the Compliance Training Program within thirty (30)
calendar days of the date of their employment or re-assignment.
iv. Verizon shall repeat such training annually, and shall take such steps
as are reasonable, necessary and appropriate to update and enhance the
network outage internal on-line training course to ensure that it is
accurate and complete.
d. Outage Reporting. Beginning sixty (60) calendar days after the
Effective Date and thereafter, Verizon shall include in any NORS
report filed with the Commission the date and time that Verizon
discovered the outage was reportable using the following two separate
fields: (1) Date Outage Determined Reportable and (2) Local Time
Outage Determined Reportable (24 hr clock (nnnn)).
e. Compliance Reports. Verizon shall file Compliance Reports with the
Bureau six (6) months after the Effective Date, twelve (12) months
after the Effective Date and twenty-four (24) months after the
Effective Date.
i. Each Compliance Report shall include a certification by the Compliance
Officer, as an agent of and on behalf of Verizon, stating that the
Compliance Officer has personal knowledge that Verizon (A) has
established and implemented the Compliance Plan; (B) has utilized the
Operating Procedures since the implementation of the Compliance Plan;
and (C) is not aware of any instances of non-compliance with the terms
and conditions of this Consent Decree.
ii. The certification shall be accompanied by a statement explaining the
basis for the Compliance Officer's certification and must comply with
section 1.16 of the Rules and be subscribed to as true under penalty
of perjury in substantially the form set forth therein.
iii. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of Verizon,
shall provide the Commission with a detailed explanation of (A) each
instance of non-compliance; (B) the steps that Verizon has taken or
will take to remedy such non-compliance, including the schedule on
which proposed remedial actions will be taken; and (C) the steps that
Verizon has taken or will take to prevent the recurrence of any such
non-compliance, including the schedule on which such preventive
action will be taken.
iv. All Compliance Reports shall be submitted to the Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Washington, D.C. 20554, with a copy
submitted electronically to Kathy Harvey at Kathy.Harvey@fcc.gov and
to JoAnn Lucanik at JoAnn.Lucanik@fcc.gov.
f. Progress Assessment. Beginning on the Effective Date, Verizon shall,
at the request of the Bureau, meet with the Bureau once each 60-day
period during the term of the Compliance Plan to discuss Verizon's
adherence to the Compliance Plan and its performance under the Part 4
Rules. Verizon agrees to provide the Bureau with information the
Bureau requests concerning these topics.
g. Termination. The provisions of this paragraph shall remain in effect
for two (2) years from the Effective Date.
10. Section 208 Complaints; Subsequent Investigations. Nothing in this
Consent Decree shall prevent the Commission or its delegated authority
from adjudicating complaints filed pursuant to Section 208 of the Act
against Verizon or its affiliates for alleged violations of the Act, or
for any other type of alleged misconduct, regardless of when such
misconduct took place. The Commission's adjudication of any such complaint
will be based solely on the record developed in that proceeding. Except as
expressly provided in this Consent Decree, this Consent Decree shall not
prevent the Commission from investigating new evidence of noncompliance by
Verizon with the Act, the Rules, or Commission Orders.
11. Voluntary Contribution. Verizon agrees that it will make a voluntary
contribution to the United States Treasury in the amount of ninety
thousand dollars ($90,000). The payment shall be made within thirty (30)
calendar days after the Effective Date. The payment must be made by check
or similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN Number
referenced in the caption to the Adopting Order. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box 979088,
St. Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S.
Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
02130004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Verizon will also send electronic
notification on the date said payment is made to JoAnn.Lucanik@fcc.gov,
Kathy.Harvey@fcc.gov, and Sam.Peoples@fcc.gov.
12. Waivers. Verizon waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal, or stay, or to
otherwise challenge or contest the validity of this Consent Decree and the
Adopting Order, provided the Bureau issues an Adopting Order adopting the
Consent Decree without change, addition, modification or deletion. Verizon
shall retain the right to challenge Commission interpretation of the
Consent Decree or any terms contained herein. If either Party (or the
United States on behalf of the Commission) brings a judicial action to
enforce the terms of the Adopting Order, neither Verizon nor the
Commission shall contest the validity of the Consent Decree or the
Adopting Order, and Verizon shall waive any statutory right to a trial de
novo. Verizon hereby agrees to waive any claims it may otherwise have
under the Equal Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S:
1.1501 et seq., relating to the matters addressed in this Consent Decree.
13. Invalidity. In the event that this Consent Decree in its entirety is
rendered invalid by any court of competent jurisdiction, it shall become
null and void and may not be used in any manner in any legal proceeding.
14. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent Rule or order adopted by
the Commission (except an order specifically intended to revise the terms
of this Consent Decree to which Verizon does not expressly consent) that
provision will be superseded by such Commission Rule or order.
15. Successors and Assigns. Verizon agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
16. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute either
an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
Communications Laws.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
18. Paragraph Headings. The headings of the paragraphs in this Consent
Decree are inserted for convenience only and are not intended to affect
the meaning or interpretation of this Consent Decree.
19. Authorized Representative. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree. Each person signing this Consent Decree on behalf of a Party
hereby represents that he or she is fully authorized by the Party to
execute this Consent Decree and to bind the Party to its terms and
conditions.
20. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed and
delivered, shall be an original, and all of which counterparts together
shall constitute one and the same fully executed instrument.
_____________________________________
P. Michele Ellison
Chief
Enforcement Bureau
_____________________________________
Date
_____________________________________
Nicola Palmer
Senior Vice President - Global Network Operations & Engineering
_____________________________________
Date
"Verizon" means the regulated, wholly owned subsidiaries of Verizon
Communications Inc. and their successors and assigns.
47 U.S.C. S:S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
"Verizon" means the regulated, wholly owned subsidiaries of Verizon
Communications Inc. and their successors and assigns.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Kathleen Grillo,
Vice President, Federal Regulatory, Verizon (Jan. 4, 2010).
See Letter from Ricardo M. Durham, Acting Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission, to
Kathleen Grillo, Senior Vice President, Federal Regulatory Affairs,
Verizon (March 29, 2011).
47 C.F.R. S: 4.9(f).
Id.
47 C.F.R. S:4.11.
See supra note 2.
See Letter from Mark J. Montano, Assistant General Counsel, Verizon to
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau (Feb. 3, 2010).
Verizon, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 9034
(Enf. Bur. 2010).
See supra note 3.
See Letters from Mark J. Montano, Assistant General Counsel, Verizon, to
Marlene H. Dortch, Secretary, Federal Communications Commission, (April
28, 2011 and May 26, 2011).
See, e.g., Tolling Agreement Extension, File No. EB-11-SE-010, executed by
and between John D. Poutasse, Acting Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, and Edward Shakin,
Vice President and Associate General Counsel, Verizon (Aug. 17, 2011).
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Federal Communications Commission DA 12-391
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Federal Communications Commission DA 12-391